Citation Nr: 1323946 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 07-14 392 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a low back disability, to include as secondary to a service-connected disease or injury. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran had active service from November 1983 to November 1987. This matter initially came before the Board of Veterans' Appeals (Board) from an August 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Waco, Texas. In March 2009, March 2011, and September 2012, the Board remanded the claim for further development. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. A chronic low back disorder was not manifest during service. Arthritis was not manifest within one year of separation from service. 2. A chronic low back disorder is unrelated (causation or aggravation) to a service-connected disease or injury. CONCLUSIONS OF LAW 1. A chronic low back disability was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). 2. A chronic low back disability is not proximately due to or the result of (causation or aggravation) a service-connected disease or injury. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In April 2006, the RO notified the Veteran of the evidence needed to substantiate the claim for entitlement to service connection for low back strain, to include as secondary to a service-connected disability. The letter included discussion of entitlement on a direct and secondary basis. The letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). For claims pending before VA on or after May 30, 2008, 38 C.F.R. 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In any event, the letter sent to the Veteran complied with this requirement. The Veteran was notified of all other elements of the Dingess notice in correspondence dated in March 2006 and March 2009. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records and all of the identified post-service VA and private treatment records. The Veteran was also afforded VA examinations pertaining to his claimed low back disorder in May 2006, March 2009, May 2011, January 2013, and February 2013. The case was remanded for further development in March 2009, March 2011, and September 2012 to obtain an adequate VA medical opinion. Pursuant to the September 2012 remand, a VA independent medical opinion was obtained in May 2013 that is determined to be adequate for adjudication purposes. In the May 2013 VA medical opinion, the authoring physician addressed the September 2012 remand directives. Specifically, the examiner provided an opinion as to whether it was at least as likely as not that the Veteran's low back disability was aggravated, worsened or increased in severity, due to his service-connected left knee disability. As shown below, the RO/AMC substantially complied with the remand instructions. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) ("It is substantial compliance, not absolute compliance, that is required" under Stegall.) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim for entitlement to service connection for low back strain, to include as secondary to the service-connected left knee disabilities are thus ready to be considered on the merits. Laws and Regulations As an initial matter, the Board notes that record does not reflect, and the Veteran does not contend that he engaged in combat with the enemy. Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not applicable. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). The statutory presumptions of service connection are set forth in 38 U.S.C. § 1112, which provides for a presumption for "chronic disease[s] becoming manifest to a degree of 10 percent or more within one year from the date of separation from such service." VA implements this presumption through a triumvirate of regulations, namely 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir.2013) (finding a "clear linkage" between § 3.307(a) and § 3.309(a) to § 3.303). Section 3.303(b) states that a presumption of service connection exists for post-service manifestations of "chronic disease" if the chronicity of the disease was "shown as such in service (or within the presumptive period under § 3.307)," or, if there is "continuity of symptomatology" after service. The last component is the definition of "chronic disease," which is found in § 3.309(a). Section 3.309 enumerates several specific diseases that are eligible "chronic diseases" under the scheme. The term "chronic disease" is statutorily defined in 38 U.S.C. § 1101, which identifies several chronic diseases by name and permits the addition of "such other chronic diseases as the Secretary may add...." The statute identifies such diseases as arthritis, diabetes mellitus, and psychosis, among others. The Secretary's list is found in regulation 38 C.F.R. § 3.309(a), and is substantially similar. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. §§ 1110; 1131; 38 C.F.R. § 3.310(a). This includes any increase in disability (aggravation) that is proximately due to or the result of a service connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Effective October 10, 2006, the section heading of 38 C.F.R. § 3.310 was retitled "Disabilities that are proximately due to, or aggravated by, service-connected disease or injury." Paragraph (b) of 38 C.F.R. § 3.310 was redesignated as paragraph (c), and a new paragraph (b) was added, which states: (b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice- connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. The amendment is to be applied prospectively as it is more restrictive; it is not for application in the present claim because it was filed in February 2006. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Factual Background and Analysis Initially, the Board notes that it is not established or claimed that the Veteran's low back disorder was manifest during his period of active duty from November 1983 to November 1987. The Board also notes that arthritis was not manifest within one year of separation from his period of active duty. Rather, an October 1987 separation examination report disclosed that a clinical evaluation of the Veteran's spine was normal. In the absence of disease or injury during his period of active duty and no evidence otherwise linking the pathology to service or the presumptive period, service connection is not warranted based upon the period of active duty. The Veteran does not contend that his low back disorder onset was due to disease or injury sustained in service. Rather, he asserts that his current lumbar spine disorder is causally related to his service-connected postoperative residuals of a left knee injury and left knee degenerative joint disease. Specifically, he asserts that his altered gait from his left knee disability has caused or contributed to his lumbar spine disorder. An April 2005 VA treatment note documented the Veteran's complaints of low back pain. April 2005 x-rays of the lumbar spine showed no compressions, maintained discs, unremarkable alignment, and the posterior component was within normal limits. In an April 2005 VA addendum note, the examining physician observed that the lumbar spine x-rays were unremarkable. In a January 2006 private treatment note, the Veteran reported that he felt "well" and he had no complaints. The physician noted that the Veteran had no current medical problems and he had no musculoskeletal complaints. During a May 2006 VA examination, the Veteran reported that he had no injuries to his lumbar spine during service. He noted that he started having low back pain two years ago. He related that his low back pain developed secondary to his service-connected left knee disability. He indicated that his back pain was aggravated by getting in and out of the car as part of his job as an inspector. The diagnosis was low back strain. The examiner opined that it was less likely than not that his current back condition was related to his service-connected left knee disability. In a June 2006 private treatment note, the Veteran complained of intermittent back pain for the past three years. The diagnoses were low back pain and lumbar and sacral osteoarthritis. During a June 2007 VA examination, the Veteran reported that he had weakness in his left leg due to his service-connected left knee disability that required him to use his right leg to bear the excess weight. During a March 2009 VA examination, the Veteran complained of low back pain associated with his working as an electrical inspector. He stated that his pain started approximately four years ago. He also indicated that his back pain was caused by favoring his left knee. He complained of pain in the left side of his low back. He reported that his back pain increased while he was at work. He stated that he completed approximately 10 to 15 inspections per day that required an excessive amount of walking and ascending and descending stairs. He denied a history of trauma or injury to the low back. The diagnosis was lumbar strain. The examiner opined that it was less likely than not that the Veteran's current low back disorder was caused by his service-connected left knee disability. He noted that there was "nothing in the literature that would indicate that a left knee condition would cause a low back condition." During a May 2011 VA examination, the Veteran reported that he had a gradual onset of low back pain in approximately 2005. He denied any specific injury to the region. He noted that the pain was in the midline lower lumbar segment and it had increased in severity in the past six years. An examination of the lumbar spine revealed tenderness over the bilateral lower lumbar segment and the midline in the musculature. X-rays of the lumbar spine showed preserved lumbar column alignment, vertebral body heights, and disc spaces. There was minor anterior osteophytic lipping in the lower lumbar spine. There were normal sacroiliac joints and no acute disease or significant interval change in the appearance of the lumbar spine. The diagnosis was lumbar myofascial syndrome without radiculopathy. The May 2011 VA examiner opined that this was less likely than not to have been caused by and the result of active military service. He stated that he found no evidence of any types of lumbar disorders during active service and he knew of no medical authority or peer reviewed medical literature that supported the contention that one can develop low back pain from degenerative disease in the knee. He also noted that the Veteran's body mechanics were normal at the time of the examination and were "certainly... not a cause of the low back pain." During a January 2013 VA examination, the Veteran complained of continued low back pain. The diagnosis was myofascial lumbar syndrome. The examiner opined that the Veteran's low back disorder was less likely than not proximately due to or the result of his service-connected left knee disability. He noted that a peripheral joint condition would not be an etiologic agent in the development of any intrinsic spine condition. In a February 2013 addendum to the January 2013 VA examination report, the examiner opined that the claimed low back disorder was less likely than not proximately due to or the result of the Veteran's service-connected left knee disability. He provided the following: As previously stated: A review of the [o]rthopedic literature reveals that no "disability" of the left knee would affect a lower back (lumbar spine) "disability." It would not permanently "aggravate", (sic) "worsen" or "increase in severity" of any spine condition. The review of the literature suggest (sic) that no condition of a peripheral joint would permanently aggravate or affect any condition of the spine. In April 2013, the Veteran's representative submitted a copy of a Board decision, dated in March 2005, in which the Board granted another veteran service connection for a low back disability secondary to a service-connected left knee disability; various internet articles in which the authors reported that, in some cases, back pain developed from an abnormal gait or from an individual favoring a non-affected knee; and arguments that medical literature, specifically the aforementioned articles, supported a different conclusion than the January 2013 VA examiner's opinion. In a May 2013 independent medical opinion, a VA physician opined that it was less likely than not that the Veteran's claimed back condition was "proximately due to, a nexus, aggravated by, worsened or aggravated beyond its natural aging process by his left knee condition." Her review of the claims file revealed left knee radiograph and magnetic resonance imaging (MRI) studies showed minimal changes in the bony configuration of the knee joint over a six year span from 2005 to 2011. She also noted that the Veteran's vital signs indicated a weight of 200 to 216 pounds at a height of 69 inches with a body mass index of 32 that was consistent with obesity. She reported that the Veteran's May 2011 lumbar spine radiographs showed minor changes "consistent with a normal and natural aging process." She also observed that the January 2013 VA examiner diagnosed myofascial lumbar syndrome with no radiculopathy or intervertebral disc syndrome. Therefore, she opined that the Veteran's claimed low back disorder was consistent with his "normal and natural aging process." She further indicated that the clinical evidence demonstrated that the back condition was not aggravated by, worsened or aggravated beyond its natural and normal aging process by the "minor" left knee disability. The May 2013 VA examiner also related that she was in "total agreement" with the February 2013 VA examiner. She also provided the following: Although [the Veteran's representative] argued that there was literature supporting the Veteran[']s claim, the articles presented were single author opinions and/or internet source material. In my opinion, these articles were not medically based, scientific evidence representative of large[,] unbiased clinical studies. Furthermore, these opinions did not represent the degree of joint changes or a description, location[,] and type of referred pain. As stated in the above description of the Veteran's claimed back condition, the minor clinical findings demonstrated in the 2013 [VA examinations] of the back were LESS LIK[EL]Y THAN NOT a nexus from his knee condition but a consequence of his normal and natural aging process. And to the best of my knowledge, current literature does not support a claim of a minor left knee condition as the single source of minor lower back condition. Last, the Veteran's non-service connected Obesity and body habitat were also major risk factors, too. The Board finds that a preponderance of the evidence is against a finding that the Veteran's low back disorder was caused by, aggravated, worsened, or increased in severity due to a service-connected disease or injury. The Veteran is competent to provide testimony or statements relating to symptoms or facts of events that he has observed and are within the realm of his personal knowledge. Additionally, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case-by-case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, the Veteran is competent to report that he favors his right leg due to his service-connected left knee disability. See Buchanan v. Nicholson, 451 F. 3d 1331 (2006). Furthermore, he is competent to report what he found on the internet. However, the Board finds the May 2013 VA examiner's opinion is entitled to more probative weight than the Veteran's argument that the current low back disorder was caused or aggravated by his service-connected left knee disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. Id. The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. Id. at 304, see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In the May 2013 independent medical opinion, the VA physician opined that the Veteran's current low back disorder was consistent with his normal and natural aging process and was less likely than not proximately due to, a nexus, aggravated by, worsened, or aggravated beyond its natural aging process by his service-connected left knee disability. Additionally, she indicated that the Veteran's obesity and body habitat were major risk factors for low back pain. She based her opinion on her review of the claims file, including previous VA examinations, x-ray and MRI studies of the left knee, May 2011 x-rays of the lumbar spine, and professional knowledge. The May 2013 VA examiner noted that she was in "total agreement" with the February 2013 VA examiner who also opined that the claimed low back disorder was less likely than not proximately due to or the result of the Veteran's service-connected left knee disability. The February 2013 VA examiner stated that a review of orthopedic literature revealed that no disability of the left knee would affect a lumbar spine disability. He also noted that a left knee disability would not permanently aggravate, worsen, or increase the severity of any spine condition. The Board notes that in support of the claim for service connection for a low back disability the Veteran's representative submitted various internet articles. "Competent medical evidence" may mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. See 38 C.F.R. § 3.159(a)(1). However, treatise evidence alone is usually "too general and inconclusive" to establish a medical nexus. Sacks v. West, 11 Vet. App. 314, 317 (1998). A medical article or treatise can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least a plausible causality based upon subjective facts rather than unsubstantiated lay opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999). In this case, the articles submitted by the Veteran's representative are not accompanied by any competent opinion asserting that the general circumstances described in the articles are applicable in the specific case of this Veteran. Further, the May 2013 VA examiner specifically addressed the articles submitted by the Veteran's representative. She noted that the submitted articles were single author opinions and/or internet source material that were, in her opinion, not medically based, scientific evidence representative of larger, unbiased clinical studies. She also observed that the articles did not represent the degree of joint changes or a description of the location and type of referred pain. She noted that, to the best of her knowledge, current literature did not support a claim of a minor left knee condition as the single source of a minor lower back condition. The Board accordingly finds the articles are not probative medical evidence in this case. The Board also acknowledges the Veteran's contention that at least one other veteran has been service-connected for a low back disorder secondary to a service-connected left knee disability. See March 2005 Board decision submitted by Veteran's representative in April 2013. However, since Board decisions are non-precedential, previous decisions have no bearing on the outcome of this case. See 38 C.F.R. § 19.5 (listing the criteria governing the disposition of Board decisions). Therefore, the Board may only rely on the applicable law and the facts and circumstances of this particular case. For the foregoing reasons, the claim for service connection for a low back disorder, to include on a secondary basis, must be denied as a matter of law, and the preponderance of the evidence is against the claim on a direct and presumptive basis. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d at 1364; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for a low back disorder, to include as secondary to service-connected disease or injury, is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs